Pinpointing Parliament: Supreme Court Citation of Parliamentary Evidence, 2010-2020.

• Author: Feldman, Charlie

The legislative and judicial branches of government are closely linked. Legislation that is passed by parliament becomes the very laws the judiciary must interpret as it rules on criminal and civil matters. But how often does Canada's highest court cite parliamentary debates and documents in its decisions? In this article, the author examines a 10-year period of Supreme Court of Canada (SCC) decisions that cite at least one parliamentary document. Of the 720 SCC judgments from this period, 96 cited a parliamentary document (13.33 per cent). He provides a discussion of which types of documents are cited and also notes the complexities when counting citations and understanding how they might have been used by judges. He concludes with questions for future researchers to consider.

Introduction

How often does the Supreme Court of Canada (SCC) cite parliamentary debates and documents? Do certain parliamentary publications attract more judicial attention than others? This particular intersection between the legal and judicial branches appears largely unexplored, though studying judicial citation --and what is viewed as "authority" (1)--remains as important as ever. Indeed, just this past fall the Alberta Law Review published a work entitled "The Most-Cited Law Review Articles of All Time by The Supreme Court of Canada". (2)

Legal citation has a long history, (3) and law is said to be the "birthplace of citation study". (4) That said, legal citation practice is not without its critiques (5)--including those particular to the Canadian context (6)--and citation study has its challenges. (7) Nonetheless, judicial citation practices can and should be examined. And, they may be the subject of quite legitimate critique--a matter vividly illustrated in recent scholarship about judicial citation of Wikipedia pages. (8) Faults, failures, or foibles of citations (and the study of them) aside, understanding how courts decide cases--as viewed through their citations--warrants consideration.

This research finds the average annual percentage of SCC decisions citing parliamentary documents increased from 2010-2020.

If this trend continues, it will become increasingly important to pay attention to what parliamentary evidence is being cited to monitor shifts in court behaviour (or, potentially, changes in parliamentary practices as reflected in court decisions).

This article begins with a historical note regarding Hansard use by courts. Next, the methodology is presented in two parts--the first describing parliamentary evidence and the second detailing how citations were identified. Finally, it presents analysis and findings alongside questions for future research and a short conclusion.

Historical Note

Hansard and other parliamentary documents were inadmissible evidence in judicial proceedings until fairly recently. (9) Though the precise origin of this practice in English law is contested, (10) scholars agree that Hansard was generally excluded by Canadian courts until the 1970s. (11) Expanded Hansard use by the Court has generated limited legal academic interest, (12) mostly focused on questions of statutory interpretation.

Generally speaking, parliamentary evidence was not viewed as reliable in part because debates tell of the "views and understanding of certain participants in the legislative process" rather than "the views and understandings of Parliament itself". (13) In relaxing its approach to the admissibility of parliamentary evidence, the SCC has explained: "Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation". (14)

An early parliamentary perspective on this question may surprise those who cling to the traditional exclusionary position. One of only a few individuals to serve both in parliament and on the Supreme Court of Canada, Charles Fitzpatrick (who served as Solicitor-General and later SCC Chief Justice 1906-1918) is reported to have said in the House of Commons in 1899 that:

We make laws here, and naturally our intention and our desire must be that the laws we make should be thoroughly understood, especially by the judges who are called upon to administer the laws and by the lawyers who take part in their administration. If we want the laws which are passed here to be properly understood, it seems to me of the first importance that the reasons and explanations given in this House when the Bills are introduced and discussed on both sides should be accessible to those who are called upon to administer the laws. (15) While this sentiment might be read narrowly in its framing of the issue as being 'accessibility,' presumably Fitzpatrick intended for judges not merely to have access to Hansard but also to make use of it. In that regard, it is important to consider that the accessibility of parliamentary documents has only increased with time, particularly in recent years as a result of digitization projects for historical parliamentary records. (16) At the same time, judicial attitudes toward the admissibility of parliamentary evidence have evolved. (17)

Whether parliamentarians view themselves as "speaking to the court" is beyond the scope of this work. Hansard contains expressions from parliamentarians such as "I hope that, if judges read what the politicians and lawmakers have said while studying a bill, they will understand", (18) indicating a desire for Courts to read their remarks. The corollary appears in critiques for Courts ignoring Parliament: "Had that judge read the debates in Hansard he would surely have come to another conclusion". (19) Certainly, one can query whether judges and parliamentarians have shared expectations of how they engage with one another.

For their part, parliamentarians have offered perspectives on what the court sees of Parliament. In 2010, a senator declared in the Upper House that "What they say in the Senate is often quoted in our courts", and "What they say in the House of Commons is never quoted; but what we say in the Senate is often quoted". (20) In 1983, an MP--and tax lawyer by trade --offered a similar view, expressed in the Commons as an undisputed fact: "We know the courts pay absolutely no attention to what is said in this House, either by Members of the Opposition or by Members of the Government." (21)

Perhaps these views could be statistically supported at one time; however, this research paints a very different picture of contemporary court practice. For example, of the 221 parliamentary documents cited by the SCC between 2010-2020 (inclusive), over two-thirds were from the House of Commons. As indicated in Figure 1 above, the Court routinely looks to parliamentary evidence and the exclusionary era is clearly behind us. But, what parliamentary evidence is the Court citing and how can this be measured?

Methodology Part I: Defining Parliamentary Evidence

This article will use "parliamentary evidence" to refer to written records (22) of discussions in, and decisions taken by, the Senate and House of Commons or a parliamentary committee. (23) It includes--by extension --documents published by decisions or practices of either House (including sessional papers) but it does not include bills.

In a broad sense, the goal is to capture documents that are subject to parliamentary privilege. Legislative texts are certainly looked at by Courts, though there are other challenges and questions with respect to Court references to legislation--particularly when it is under consideration by Parliament and not enacted. (24) However, the focus of this particular inquiry is not on legislation but on parliamentary evidence, much of which is wrapped up with the consideration of legislation.

For purposes of this work, parliamentary evidence refers specifically to:

1. Transcripts of Debates from the Senate or House of Commons (known as "Hansard", published as the "Debates")

2. Transcripts from committees of the Senate or House of Commons--or of both Houses (published as "Evidence" or "Proceedings")

3. Records of decisions from the Senate or House of Commons (published as the "Journals")

4. Records of minutes from committee meetings (published as "Minutes")

5. Sessional Papers (broadly, documents tabled in the Senate or House of Commons)

6. Committee reports (traditionally these were printed in the Journals, but are now often recorded as sessional papers)

7. Compilations or restatements of any elements of the above from a parliamentary source (except for procedural manuals). (25)

Item seven contemplates previous publications of the Senate and House of Commons such as Votes and Proceedings (a House of Commons publication from 1868-1994) and Minutes of the Proceedings of the Senate (published 1868-1996). (26) It also captures committee Evidence and Minutes that are cited to a bound volume with a title starting "Minutes of Proceedings and Evidence" followed by the name of the committee. Simply put, the goal is to capture every publication--other than legislation--of the Senate, House of Commons, or a joint committee of both Houses, regardless of what it may have been termed at the time.

Additionally, item seven captures the Rules of the Senate, Standing Orders of the House of Commons, the "Status of House Business" and "Progress of Legislation" documents, as well as the Order Paper and Notice Paper. None of these appear to have been cited by the Court in the last 15 years, though it is perhaps worth noting that several Supreme Court of Canada cases mention (without citation) that a particular bill "died on the Order Paper".

Of note, publications written by the staff of the Library of Parliament--such as legislative summaries and background papers--are also excluded, though these have been cited by the SCC on several occasions. (27) As well, items from officers and agents of Parliament are excluded, except if cited in a parliamentary document. (28)

Importantly, the same parliamentary evidence...